GEORGE (DEREK) FOWLER and REPATRIATION COMMISSION

[2009] AATA 167

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] aata 167

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3143

VETERANS' APPEALS DIVISION		)
Re		GEORGE (DEREK) FOWLER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date16 March 2009

PlaceCanberra

Decision The decision under review is affirmed.

..........[Signed]....................................

Mr S. Webb, Member

CATCHWORDS

VETERANS' ENTITLEMENTS - disability pension - rate - no basis to increase rate of pension - decision affirmed

Veterans' Entitlements Act 1986 ss 15, 21A, 29, 120

REASONS FOR DECISION

16 March 2009 Mr S. Webb, Member         

1.      George Fowler is a World War II veteran with disabilities that have been accepted as war-caused. He was paid a pension at 40 percent of the general rate. Mr Fowler lodged an application for an increase in the rate of his pension. The Commission decided to increase his pension to 50 percent of the general rate. Unhappy with that decision, Mr Fowler applied for review by the Veterans Review Board. The decision was affirmed. The matter is presently before this Tribunal for review.

2.      The issue for determination is whether Mr Fowler is entitled to an increase in the rate of his disability pension. There is no dispute that any increase in pension is payable from 25 September 2007, the date of his application.

3.      Mr Fowler asserts that he is entitled to a pension at 100 percent of the general rate. The reasons for this are less than clear. Mr Fowler tended little evidence in support of this assertion. As it appears to me Mr Fowler attributes problems with his prostate and bladder, causing frequent micturation and discomfort, to his war-caused disabilities, particularly cancer of the colon.[1] He attributed his war-caused conditions to exposure to trichloroethylene while servicing aircraft during his operational service. It is not clear whether Mr Fowler attributed his urological problems to such exposure. Mr Fowler gave evidence concerning the nature and extent of his disabilities and he tendered documents from his treating doctors: Dr Albekka, an ear nose and throat surgeon,[2] Dr Bridger[3] and Dr Haxhimolla, a urological surgeon.[4] It appears that Mr Fowler underwent surgery prior to the hearing. The surgery was successful and his health has improved; he informed me that he is now feeling better than he has for many years. Nevertheless, in Mr Fowler’s submission, he is entitled to a higher rate of pension and the decision under review should be set aside.

[1] T13 folio 32.

[2] Exhibit A1.

[3] Exhibit A2.

[4] Exhibit A3.

4.      I do not agree.

5. Mr Fowler’s application for an increase in the rate of pension is pursuant to s15 of the Veterans’ Entitlements Act 1986 (the Act). The degree of incapacity and the rate of pension is to be determined by application of the Guide to the Assessment of Rates of Veterans’ Pensions (GARP).[5] The reasonable satisfaction standard of proof applies.[6]

[5] Veterans’ Entitlement Act 1986 subsection 21A(1) with reference to s 29.

[6] Veterans’ Entitlement Act 1986 subsection 120(4).

6.      Mr Fowler has the following accepted war-caused injuries and diseases:

·cancer of the colon,

·bilateral senorineural hearing loss,

·nasal polyposis, and

·chronic sinusitis.

There is no evidence before me that Mr Fowler has lodged a claim in relation to his urological problems – urinary retention and benign prostatic hyperplasia.[7] Nor is there evidence that these problems are causally related to Mr Fowler’s colon cancer (a Duke’s B carcinoma), which was successfully treated with a sigmoid colectomy in 1986.[8] On the contrary, the evidence of Dr Hughes, which I accept, is that there is no such relationship.[9] Dr Haxhimolla is silent on the issue of causation.[10] These conditions cannot, therefore, be assessed for present purposes. The question whether Mr Fowler’s urological problems are war-caused is not presently before me; that is a matter for the Commission to determine.

[7] Exhibit A3.

[8] T3.

[9] T8 folio 21.

[10] Exhibit A3.

7.      Further to the documents and evidence (including Mr Fowler’s oral evidence) to which I have referred, I note:

(a)the report of Dr Albekka at Exhibit A1, and the Doctor’s references to dizziness as a result of Mr Fowler’s chronic sinusitis;[11]

(b)the audiogram at T10 folio 23a;

(c)medical assessments by Dr Albekka[12] and a doctor at the Brindabella Specialist Centre.[13]

[11] See also T6 folios 18 and 19.

[12] T9 folio 22.

[13] T15 folio 34-37.

8.      Having regard to this evidence, I am reasonably satisfied that Mr Fowler suffers from the following assessable impairments: nasal polyposis, chronic sinusitis, bilateral sensorineural hearing loss and cancer of the colon. Mr Fowler’s urological problems have not been determined to be war-caused and therefore, cannot be considered for the purposes of assessing the degree of his incapacity and the rate of his disability pension.

9.      Applying the relevant chapters and tables in the GARP I am reasonably satisfied that the following impairment ratings are correct:

Chapter 5 – Neurological Impairment:    
Loss of sense of smell[14]   
Complete loss of sense of smell  5 points
Loss of sense of taste[15]   

[14] Guide to the Assessment of Rates of Veterans’ Pensions, Table 5.5.

[15] Guide to the Assessment of Rates of Veterans’ Pensions, Table 5.5.

Partial loss of sense of taste  2 points

Chapter 7 – Ear, Nose and Throat Impairment:
Bilateral sensorineural hearing loss[16]
Where no bone conduction values were recorded,
air conduction values have been applied  12 points
Tinnitus[17]
No tinnitus or occasional tinnitus  0 points
Upper respiratory tract and nasal conditions[18]
Symptoms of chronic sinusitis are relieved by medication

[16] Guide to the Assessment of Rates of Veterans’ Pensions, Tables 7.1.1 to 7.1.10.

[17] Guide to the Assessment of Rates of Veterans’ Pensions, Table 7.1.11.

[18] Guide to the Assessment of Rates of Veterans’ Pensions, Table 7.2.2.

and occur for more than 4 months each year  5 points

Chapter 14 - Malignant Conditions
Malignant disorders[19]
Minor symptoms that are easily tolerated  0 points
Life expectancy[20]

Five year survival less than 75% of normal  10 points

Chapter 17 - Disfigurement and Social Impairment
Disfigurement[21]

A noticeable condition causing slight embarrassment              0 points

Chapter 18 – Combined Values Chart

Combining the above impairment ratings using Table18.1[22]   30 points

[19] Guide to the Assessment of Rates of Veterans’ Pensions, Table 14.1.

[20] Guide to the Assessment of Rates of Veterans’ Pensions, Table 14.2.

[21] Guide to the Assessment of Rates of Veterans’ Pensions, Table 17.1.

[22] Guide to the Assessment of Rates of Veterans’ Pensions, Table 18.1.

Thus, Mr Fowler has an overall impairment rating of 30 points. I so find.

10.     Applying Chapter 22 concerning lifestyle effects, I note that there is very scant evidence concerning the lifestyle effects of Mr Fowler’s accepted disabilities. Doing the best with the available material, applying Option 2 and Tables 22.1 to 22.5, a lifestyle rating of 2 points is derived:

Table 22.1 - mildly affected personal and social

relationships  2 points

Table 22.2 – no or minimal restrictions on mobility                   0 points

Table 22.3 - Unable to continue some accustomed

recreational pursuits  3 points

Table 22.4 - able to carry out accustomed tasks  2 points

Table 22.5 – unable to follow accustomed

employment without modification  3 points

These scores are combined using the applicable method and divided by a factor of 4, giving an overall lifestyle effect of 2 points.

Thus, Mr Fowler has a lifestyle effects score of 2 points. I so find.

11.     Finally, the impairment rating of 30 points and the lifestyle rating of 2 points are used to determine the degree of incapacity applying Table 23.1. The resulting degree of incapacity is 50. I so find.

12.     It follows that Mr Fowler’s disability pension is to be determined at 50 percent of the general rate. That being so, Mr Fowler’s submission that his disability pension should be at 100 percent of the general rate is not made out on the evidence before me, and the decision under review must be affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member.

Signed: .............[Signed]..................................
  Demelza-Rose Gale           
  Associate

Date of Hearing:  27 February 2009

Date of Decision:  16 March 2009

Representative for the Applicant: Unrepresented

Representative for the Respondent: Mr B. Tallboys

Chamberlains Law Firm